ISLAMABAD: Justice Jamal Khan Mandokhel questioned why cases of soldiers who are martyred in terrorism-related incidents are not being tried in military courts.
A seven-judge SC constitutional bench, headed by Justice Aminuddin, on Wednesday, heard the intra-court appeals (ICAs) against the apex court’s judgment.
Khawaja Haris, representing Ministry of Defence, resuming his arguments read out the apex court’s verdict that had declared the military trial of civilians, null and void. He argued that the precedent had already been established in previous cases that civilians could also be tried in military courts.
SC raises questions about army law scope
However, Justice Mandokhel questioned why cases of soldiers who are martyred in terrorist attacks are not being tried in military courts. He stated though soldiers are daily sacrificing their lives, and the question arises: why are the cases of these martyrs not being heard in military courts?
He also asked whether an individual holding a particular thought could be tried in a military court, and which cases would fall under Article 8, clause 3 for trial in military courts.
Khawaja Haris argued that the apex court’s judgment incorrectly interpreted clauses 3 and 5 of Article 8 of the Constitution. He citing the FB Ali case, which allows that civilians could be tried by military courts, said that the two clauses 8(3) and 8(5) of the constitution are distinct and cannot be combined.
He argued that the previous ruling wrongly characterised the FB Ali case, where the trial was conducted after Ali’s retirement while he was a civilian, stating that the case was different because the crime occurred while he was still in service.
Upon that, Justice Mandokhel said that in the present case, the 9th May incidents’ suspects were not members of the armed forces. He also said that the term “ex-servicemen” is now commonly used, but these individuals were not even ex-servicemen.
The judge asked that to what extent the civilians could be tried in military courts, focusing on whether civilians could face the same treatment as those involved in incidents like the APS tragedy.
During the proceedings at one point, Justice Mandokhail revealed that he also remained in jail for 14 days, but did not tell in which offense he was sent to prison.
Justice Mussarat Hilali inquired whether all fundamental rights would be suspended when the Army Act is applied. Justice Mohammad Ali Mazhar asked about international practices, asking the defence ministry’s counsel if he had any examples to provide.
Haris replied that he had precedents and would present them in his arguments.
Justice Mazhar also pointed out that laws in the First Schedule could not be altered. With Haris stressing the importance of applying the current law in this case.
Justice Mandokhel inquired that whether individuals holding a particular thought could be tried in military courts, and which cases would qualify under Article 8, Clause 3 for military court’s trials.
Haris also argued that civilians joining the armed forces cannot challenge matters in civil courts under fundamental rights. He added that Pakistan has experienced martial law for 14 years and that the Army Act applies to cases where civilians interfere with the duties of the armed forces.
A five-member larger bench, headed by Justice IjazulAhsan and comprised Justice Munib Akhtar, Justice Yahya Afridi, Justice SayyedMazahar Ali Akbar Naqvi and Justice Ayesha A Malik on 23-10-23 declared that military trials of the civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 unconstitutional, illegal and of no legal effect.
It, by a majority of 4-1, declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. The bench had also emphasised that the cases of the suspects involved in the vandalism would proceed before criminal courts.
It is further declared that any action or proceedings under the Army Act in respect of the persons, identified in the list provided to the Court by the learned Attorney General for Pakistan, or any other persons so similarly placed (including but not limited Constitution Petition Nos24, 25, 26, 27 and 28 and 30 and 35 of 2023 6 to trial by Court Martial) are and would be of no legal effect.
However, on December 13, 2023, a six-member bench of the apex court — with Justice Hilali differing with the majority — suspended its October 23 order on petitions challenging the earlier verdict. The case is adjourned until Thursday (Jan 9).
Copyright Business Recorder, 2025